Chief Sheriff F.O. Oborevwori & Anor V. Independent National Electoral Commission & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A (Delivering the Leading Judgment)

The appeal to which these reasons for the judgment delivered on 28/9/11 relates is against the ruling of the National Assembly and Legislative Houses Election Tribunal sitting at Asaba delivered on 9th August 2011 by which that Tribunal dismissed the petition filed by Chief Sheriff Oborevwori of the Peoples Democratic Party as 1st Petitioner, and Peoples Democratic Party (PDP) as 2nd Petitioner against the Independent National Electoral Commission (INEC) as 1st Respondent, Democratic Peoples Party (DPP) as 2nd Respondent, and Julius Okpoko as 3rd Respondent in the election for Okpe Constituency into the Delta House of Assembly held on 26/4/11.

The Petitioners had in their petition sought orders nullifying the election and directing the conduct of a fresh election; withdrawing or directing the withdrawal of the Declaration of Results issued in favour of 3rd Respondent; nullifying the entire results in Ward 4 of the Constituency; and directing the 3rd Respondent to vacate the seat he occupied in the State House of Assembly pending the conduct of a fresh election in the Constituency.

The petition was served on each of the Respondents following which the 3rd Respondent filed his reply. 1st Appellant filed a reply to 3rd Respondent’s reply and followed it up with an application by letter of 21/6/11 for the issuance of a pre-hearing notice and a motion on notice for the same purpose. It is worthy to note that the aforesaid letter of application for the issuance of a pre-hearing notice was brought to the attention of the Tribunal Chairman by the Secretary of the Tribunal and the Chairman directed the Secretary to issue pre-hearing notice tor 23/6/11 as borne out by page 168 of the Record of Appeal.

1st Appellant later on 11/7/2011 filed a Motion Exparte also praying for the issuance of a prehearing notice. When the two motions for the issuance of a pre-hearing notice (i.e. the Motion on Notice and the Motion Exparte) came up for hearing on 6/7/2011, 1st Appellant withdrew the motion on notice and argued the Motion Exparte which was granted by the tribunal which had earlier ordered the issuance of a pre-hearing notice.

With the withdrawal by 1st Appellant of the aforesaid motion on notice for the issuance of a pre-hearing notice filed on 21/6/11, the 3rd Respondent filed a motion on notice dated 19/7/11 by which he sought an order setting aside the order of the Tribunal granting the relief for the issuance of a pre-hearing notice contained in the 1st Appellants aforesaid Motion Exparte and an order dismissing the petition for abandonment on the ground that the Motion Exparte filed on 1/7/2011 was filed out of time and the Tribunal had no jurisdiction to make the order for the issuance of a pre-hearing notice based on that motion. The 1st Respondent filed a similar motion.

The lower tribunal took arguments on the motion, and in its ruling delivered on 9/8/2011 allowed both motions and dismissed the petition observing in the process at page 305 of the Record of Appeal, inter-alia as follows:

“Based on the foregoing, we hereby set aside our proceedings and orders made pursuant to the said Motion Exparte for the issuance of prehearing notice. That being so, legally speaking there is no application made pursuant to paragraph 18(1) of the First Schedule to the circumstance the tribunal is left with no option than to apply paragraph 18(3) and (4) to dismiss this petition as an abandoned petition”?

Aggrieved by this decision, the Appellants filed the present appeal on three grounds which as contained at pages 307 – 310 are (without their particulars):

“GROUND 1

ERROR IN LAW

The Honourable Tribunal erred in law and thereby occasioned miscarriage of justice when it held as follows:

From the foregoing therefore we are in total agreement with the learned counsel to the 3rd Respondent that pleading were deemed closed from the 22/06/2011 , and not 01/07/2011 as contended by the Petitioners’ counsel.

That being the case, it only follows that the said motion ex-parte was not filed within 7 days after the close of pleadings as required by paragraph 18 (1) of the first schedule to the Electoral Act 2010 (as amended). It was therefore filed out of time, and to that extent it is incompetent, and we are so hold.